Governance

Initially enacted by the Ontario government in 2015, the Police Record Checks Reform Act, 2015 (the “Act”) has finally been proclaimed by the Lieutenant Governor to come into force on November 1, 2018. In addition to standardizing requests for police record checks, the Act extends privacy protections to the individuals who are the subjects of police record checks (“subject individuals”) by (i) implementing a consent regime, and (ii) prescribing what can and cannot be disclosed in respect of each type of police record check requested.

Impact on your Organization

If your organization requests police record checks as part of its recruitment efforts, whether in respect of employees, volunteers, or volunteer Board members, you will want to refresh your policies and procedures to ensure that they align with the requirements of the Act. Contravention of the Act is an offence liable to a fine of up to $5000.

Application of the Act

The Act applies to a “police record check”, which is a search of the records maintained within a police database in Canada (e.g., Canadian Police Information Centre database) and required to be conducted by persons (including organizations) in respect of a subject individual for the purposes of:

Hiring the subject individual for employment.

Engaging the subject individual for volunteer work.

Admitting the subject individual to an educational institution, a program, or a membership body.

Receiving goods and services from the subject individual or providing them to the subject individual.

The Act will not apply to certain types of searches, such as those in connection with an application for a change of name, an application for custody of a child by a non-parent, certain searches requested by a children’s aid society, and certain others that are listed in the Act and one of its accompanying regulations (“Exempted Searches”).

For some Exempted Searches, the application of the Act is simply delayed for a year and will apply to those searches on November 1, 2019. Examples of Exempted Searches for which the application of the Act is delayed is a search requested by the Crown in Right of Ontario for appointing certain public servants under Part III of the Public Service of Ontario Act, 2006, or for screening a provider of goods or services to be awarded a contract to provide goods or services to a ministry or government agency.

Types of Police Record Checks

The Act creates three types of police record checks, each disclosing only the information permitted to be disclosed in the Schedule to the Act. The types of police record checks are set out below in order of the amount of information disclosed (greatest to least):

Vulnerable Sector Check

Criminal Record and Judicial Matters Check

Criminal Record Check

While there is variation amongst the types of police record checks and the information that is permitted to be disclosed, the following is a list of information that is not permitted to be disclosed for any type of check:

Summary convictions, if the request is made more than 5 years after the date of the conviction.

Court orders made under the Mental Health Act, Part XX.1 of the Criminal Code (Canada), or those related to withdrawn charges.

Certain restraining orders made against the subject individual.

Convictions for which a pardon has been granted (subject to exceptions).

The Act also specifies when “non-conviction information” can be disclosed. Subject to certain exceptions under the Act, this is information related to the subject individual being charged with a criminal offence which was subsequently dismissed, stayed, withdrawn, or resulted in a stay of proceedings or acquittal. Non-conviction information may only be disclosed pursuant to a Vulnerable Sector Check if certain criteria listed in the Act are met (e.g., the criminal charge is one listed in the regulations under the Act, the alleged victim was a child or a vulnerable person, and there is a pattern of behaviour or incidents indicating a risk of harm to a child or a vulnerable person). The subject individual has an opportunity to request a reconsideration of any disclosure of non-conviction information.

Procedure for Police Record Checks

In order to standardize the request for and conducting of police record checks, the Act establishes the following procedures:

A written request for a police record check may be made by the subject individual or by a person or organization in respect of the subject individual.

The written request for a police record check must:

Specify the type of police record check being requested.

Include the written consent of the subject individual (such consent must be in respect of the particular check being requested).

Include any applicable fee.

The results of the police record check must first be disclosed to the subject individual, and to no other person.

If, after receiving the results, the subject individual provides written consent, the results may be provided to the person or organization that requested the police record check or other person or organization specified by the subject individual.

The individual or person that receives the results of a police record check on the consent of the subject individual shall not use or disclose the results except for the purposes for which it was requested or as authorized by law.

The Government has announced that it is working to bring Ontario’s Not-for-profit Corporations Act, 2010 (ONCA) into force and effect by early 2020. This aligns with the long-promised 2 years’ notice that the Government would give to the non-profit sector to allow the sector to prepare for ONCA’s arrival. Even once ONCA is proclaimed, non-profit corporations (now governed by the Corporations Act) will have 3 years to transition under the long-anticipated ONCA regime.

Bill 154 also made changes to the Corporations Act – some of which are beneficial to non-profits in Ontario and can be taken advantage of now, particularly related to relaxing the rules around the conduct of members’ meetings.

Bill 154’s changes to ONCA have no immediate impact. Boards are encouraged to keep ONCA on their radar – but no immediate steps are required. Keep posted.

Bill 210, the Patients First Act, proposes to change significantly how Ontario’s health care system is regulated and overseen. Most importantly, it significantly expands the mandate and powers of Local Health Integration Networks (“LHINs”). The Bill was introduced by Minister Hoskins on June 2, 2016.

The Ontario Government established LHINs in 2006 under the Local Health System Integration Act, 2006 (“LHSIA”), creating 14 geographic LHINs throughout the Province. The LHINs were set up to fund and oversee a finite list of “health service providers”, including hospitals, psychiatric facilities, long-term care homes, and community care access centres. The LHINs were originally given the power to:

review and refuse voluntary integrations between health service providers; and

order integrations between health service providers.

Bill 210 proposes to give the LHINs an expanded role by adding to the list of health service providers under the LHIN’s jurisdiction. These additional are primarily primary care health providers, such as family health teams, nurse practitioner-led clinics, aboriginal health access centres, and primary care nursing services. Palliative care services (including hospices) and physiotherapy services in a clinic setting are also added to the list of health service providers.

The Bill puts in place the mechanics by which the LHINs will take over the community care access centres (“CCACs”). CCACs are currently responsible for providing health and social services in home and community settings and managing the placement of individuals into long-term care homes, supportive housing programs, and chronic care and rehab beds. This major policy change was announced in December 2015 through a discussion paper focused on changes to primary care in Ontario. This is a sizable change in the LHINs’ mandate – they are evolving from a regulator and funder to a service provider themselves. The transition of the CCACs to the LHINs will be seamless, as the LHINs inherit the assets, liabilities and staff of the CCACs through Ministerial order.

Bill 210 also gives the LHINs considerable new powers over the expanded list of health service providers, some of which raised eyebrows across the sector. The most commented on new power is the ability of the LHIN to issue (provided it is “in the public interest” to do so) “operational or policy directives”, which when issued are mandatory for health service providers. There was serious concern expressed that Bill 210 was a first step in eroding self-governance (volunteer local boards) of Ontario’s health service providers. The Ontario Hospital Association was particularly vocal about the overly broad power given to LHINs to issue these directives, on virtually any possible subject matter, without any need for consultation or prior notice.

LHINs will also have the power to appoint an investigator over health service providers, with broad powers to investigate and report on the quality of the management of a health service provider, the quality of care provided by a health service provider, or any other matter that the LHIN considers in the public interest. Investigators may enter premises, require the production of records, and question people on matters relevant to the investigation. Investigators must prepare a report that will be made public.

Bill 210 also gives LHINs the power to appoint a “supervisor” over any health service provider (other than long-term care homes or hospitals). A supervisor is appointed at the pleasure of the LHIN for an indeterminate period of time and has the exclusive right to exercise all of the powers of the health service provider’s board, its directors, officers and members or shareholders. The Minister of Health and Long-Term Care has similar powers under the Public Hospitals Act, but the actual appointment of an investigator or supervisor must be made by Cabinet (the Lieutenant Governor in Council). Under Bill 210, the LHIN would have this power directly, without needing to involve Cabinet.

Answer: nothing. We’re in limbo. Back in September, the Ontario government announced that ONCA would be further delayed, indefinitely. The announcement reassured that the government remains committed to bringing in ONCA “at the earliest opportunity”, but it did not identify a planned (or even anticipated) proclamation date. Instead, it promised the sector at least 24 months’ prior notice of ONCA coming into force and effect.

There have been no developments or updates since September. Practically speaking, the earliest we can hope to see ONCA come into effect is Spring 2018.

Everyone in the not-for-profit sector is eager to take advantage of ONCA, which will bring the sector participants into the 21st century. Yes, there will be preliminary effort and resources needed to transition under ONCA – particularly applying for Articles of Amendment (which will amend the existing Letters Patent) and updating your organization’s by-laws. But there’s a 3-year window to do that, so no urgent action will be required on the day ONCA comes into effect.

What we are looking forward to:

Once a not-for-profit corporation is transitioned under ONCA, member relations will be much easier. ONCA facilitates electronic communication with members and the holding of electronic member meetings.

ONCA allows the Board itself to appoint directors to the Board, on an annual basis, up to a threshold number. This could be a very valuable tool, allowing the Board to supplement its skill sets on an annual basis, as its priorities and objectives change.

ONCA allows the Board much more flexibility in delegating decision-making down to Board committees. This needs to be managed thoughtfully, but a stronger committee structure can allow the Board to focus its attention on the most strategically challenging decisions it faces.

ONCA offers not-for-profit boards comfort that, should they take actions that are inadvertently or technically off-side their articles of by-laws, those actions are nevertheless valid. Business corporations have enjoyed this reassurance for decades.

Areas of ongoing concern:

There is unease about the provisions of ONCA that give non-voting members voting rights in specific circumstances: g., amendments to rights attached to a group of members, amalgamation, and the sale of substantially all of the corporation’s property. The Ontario government previously proposed (via 2013’s Bill 85) that those provisions would be delayed for a further 3 years after ONCA comes into force, presumably to give the government and sector further opportunities to consider the appropriateness of this scheme for the sector. We will be watching to see if similar amendments to ONCA are introduced and passed by the Ontario government before ONCA comes into force.

Are you waiting for ONCA to update your by-laws? Please don’t.

In chatting with a number of our not-for-profit clients, I’ve learned that many organizations that typically review their by-laws every 3 to 5 years – a good governance practice – have put that project on hold, waiting for ONCA. Some haven’t touched their by-laws since 2010, when ONCA was passed by the Legislature. Those by-laws are now at least 6 years stale, and in real need of some fresh eyes.

Reviewing and refreshing your organization’s by-laws should not be put on hold. Best governance practices evolve. Your governance structure changes. Your by-laws are a governance and business critical legal document. They need nurturing and care from time to time.

Don’t by like Lucky and Pozzo (that’s a Waiting for Godot reference) – stop waiting and be proactive. Task your board’s Governance Committee with a full by-law review, if such a review hasn’t happened in the last 3 to 5 years.

At DDO Health Law, we understand your organization’s need to put in place a robust emergency management plan (including for some organizations, by September 30, 2015). We have developed a 12-step program to help you meet that deadline and then continue to prepare your organization in case of emergency such as fire, flood, or pandemic. Our program reflects current best practices, including materials provided by at least one local health integration network to its health services providers. We have read all of these materials and pulled from them and other resources to determine current best practices — so that you do not need to.

How to best communicate with your clients, their families, the public and the media

The DDO Health Law Emergency Preparedness Program provides you with:

Dial-in series. You will be invited to take part in 5 phone sessions, scheduled in September. We will provide you ahead of the calls a template plan, the 12 steps you need to take to be ready, and other templates and materials. Noon sessions are:

Thursday, September 3

Friday, September 11

Thursday, September 17

Thursday, September 24

Final session with open Q&A on Monday, September 28

Training materials. You will be provided template training materials for team members, including a training slide deck you can circulate before your Board signs off, even before you schedule an in-person session to walk your team through the training.

Admin on call workbook. DDO Health Law previously wrote an administrator on call workbook to help health care staff deal with various kinds of crises. It is the bedrock of emergency management. We will provide you a copy of this workbook, and a draft chapter specifically on emergency preparedness. We will also provide you a copy of the updated workbook once available, for your future reference.

Mutual aid/assistance agreement. This template agreement is ready to be used in the event that an emergency strikes your organization, and you need to quickly put into place legal arrangements to backfill services.

Briefing note for your senior leadership and Board. Written by DDO Health Law, it will state that you have signed up for and participated in the DDO Health Law program, have been provided with the materials described here, and that you have undertaken that you have “filled in the blanks” and taken the steps we’ll discuss in the dial-ins. As long you have done this, we are prepared to say that your organization is compliant and that your Board should feel assured that it can sign the M-SAA by September 30, 2015 as requested by at least one LHIN. For others who do not need a September 30 signoff, the materials and briefing note still serves as a baseline for your Board and shows a measure of your due diligence.

Board resolution. Template Board resolutions will be provided, both for those organizations that must meet the September 30 deadline, and a more generic one for those that do not.

Feel free to include whomever you wish on the dial-in. The flat fee covers any team members you want to have at your table to listen in and ask questions as you work through and finalize your plan and program.

Fax to Franca Latino at (416) 967-7120; or call her at (416) 967.7100 ext. 242 to say you will register and how you will pay.

DDO HEALTH LAW

Mary Jane Dykeman and Kate Dewhirst are partners at DDO Health Law, a boutique health law firm in Toronto. They frequently advise on risk management issues relating to health care organizations premises, reputational risk, staff issues and other crises. Mary Jane was recently part of a fire safety emergency preparedness panel at the 2015 OANHSS annual convention. Mary Jane and Kate work extensively with community providers, large and small hospitals, community support services providers, disease associations, long-term care homes, family health teams, community health centres, retirement homes and other housing and health service providers.